ILNews

Tug-of-war

Michael W. Hoskins
October 28, 2009
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Juvenile Justice

Bonaventura/PayneLake Superior Judge Mary Beth Bonaventura recently found herself doing what no other Indiana juvenile judge had done previously. She phoned the state’s Department of Child Services and asked Director James Payne, himself a former juvenile court judge, for permission to place a child outside Indiana. He reviewed the case and granted her request.

But that instance isn’t what bothers Judge Bonaventura or her colleagues throughout the state; it’s that they’re forced to seek permission at all.

An unexpected, last-minute change in a bill during the 2009 special session stripped away much of the juvenile judges’ decision-making discretion for placements outside Indiana, and now all three government branches are reacting to how and why that happened and whether it strengthens or hinders Indiana’s juvenile justice system.

“This used to be a judicial decision, but now it’s an executive department decision,” said Indiana Court of Appeals Chief Judge John Baker, who recently sat as a member of the legislative Commission on Courts as it examined this issue. “I wasn’t aware it was broken, or at least that there was a discussion outside the judiciary that it was broken.”

Special session surprise

With PL 182-2009(ss), Section 387, lawmakers amended Indiana Code §31-37-19-3(f) to require DCS recommendation or approval for any out-ofstate placement, or else the county must pay for placement. The change came after the Indiana Supreme Court in April ruled against the state agency and gave more deference to juvenile judges in making placement decisions when there’s a dispute about who should pay. Taking its case directly to the General Assembly, the DCS asked the lawmakers to tweak state statute and give it more control.
 

It's not the rightThe change happened without public discussion and surprised the judges, who were still reeling from sweeping statutory changes made a year earlier giving the DCS more authority over juvenile justice decisions and shifting some funding to the state.

The gamut of issues came up during the two Commission on Courts meetings in October, where all sides came together to discuss the issues and some even pointed out potential constitutional issues that could arise.

“It’s arrogant for judges to say or think that only judges can make those decisions and not the executive branch, but our state’s policy has been to leave it up to the judges and not have them second-guessed by the executive branch,” Chief Judge Baker said, making an observation in his role filling in for Chief Justice Randall T. Shepard.

Speaking about her experience in Lake County, Judge Bonaventura said all placements are about what’s best for children and families, and the judges work to keep juveniles inside the state as much as possible, as long as needs are met. But she doesn’t like the idea of singling out and treating juveniles differently based on placement. Doing so, she said, raises potential constitutional concerns â?? a separation of powers violation and questions about how the unrelated juvenile justice provision was lumped into a massive budget bill.

John PayneTippecanoe Juvenile Judge Loretta Rush, who chairs the Indiana Supreme Court’s Juvenile Justice Improvement Committee, told the interim legislative panel that all of the recent statutory changes negatively impact their ability to do their job effectively.

“These decisions (that judges make) weigh heavily on us, and it sets our juvenile justice system backward to take away this judicial discretion and place it with a state executive agency,” she said.

Opposing sides

Several commission members voiced their frustration about the last-minute change and said they didn’t know about the provision until it became law. After hearing from a handful of unhappy juvenile judges, the committee voted overwhelming to recommend that the General Assembly repeal that provision during the upcoming session.

Rep. Matt Pierce, D-Bloomington, called the revision a “fiscally-based decision that wasn’t thought through.” Other lawmakers agreed and voiced similar concerns, saying they trusted the decisions Indiana juvenile judges have made and that there hasn’t been any rash of out-of-state placements about which the state should be concerned.

Chief Judge John Baker“I was totally unaware this was in the budget, and there ought to be a do-over,” said Sen. Tim Lanane, D-Anderson. “This goes very much to the independence of our judiciary and who’s in the best position to decide what’s in the best interests of a child. I hope there would be extensive debate on this.”

The DCS director defended the law change that he’d specifically asked for during the special session, and Payne said the rationale is focused more on best practices than money.

“I’m not here to talk about money, but money is a part of this,” he told committee members. “We have the treatment programs here to adequately serve their needs, and keeping children close to home is a best practice and something this state can and should support.”

The agency’s main priority is to keep children close to home and “engage families” as much as possible, Payne said. Outof-state placement is used as a last resort, and research shows Indiana has the capacity to keep virtually every child here.

Nationally, many states are turning away from out-of-state placements, and more than half have limited them in order to keep juveniles close to home, Payne said. He presented lawmakers with a 2008 report from the non-profit group known as IARCCA, which describes itself as an Association of Children & Family Services, saying Hoosier judges have many in-state placement options and there’s a 30 percent bed capacity that remains open. He said Indiana could use existing resources to keep virtually every child within the state and serve them adequately.

But judges disputed the report, some saying that it doesn’t take into consideration that those facilities often decline to take a particular juvenile when they are asked to do so by a judge.

The decissionsDespite Payne’s insistence that judges can still make out-of-state placements without DCS approval, juvenile judges say their hands are tied because it’s a “pay to place” setup: If they don’t consult the DCS first, then the cash-strapped counties would have to find money to pay for the placement. That is difficult in tough economic times, but especially since another provision of the 2008 law change took away and transferred to the state the local county fund previously used to pay for those placements and services.

Judge Rush said she recently asked her county council to set aside money and devote a specific line item in the budget to use when the juvenile court disagrees with the DCS, but the county refused to do that.

St. Joseph Juvenile Judge Peter Nemeth criticized how the DCS operates and continues getting more authority to call the shots on juvenile offenders, delinquents, and Children In Need of Services. The agency, he said, often seems as though it’s metaphorically throwing darts at a dartboard without knowing any particulars about a child or family, and disregards recommendations by the key players and even its own local caseworkers.

“It’s not the right thing to do, and it certainly interferes with judges doing their job,” he said. “They want to look at a piece of paper to make decisions. ... Is that the way we want our justice system to operate for our kids and their families?”

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  1. Welcome to Hendricks County where local and state statutes (especially Indiana Class C misdemeanors) are given a higher consideration than Federal statues and active duty military call-ups.

  2. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  3. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  4. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  5. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

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